§ 1013. . . . In the first draft of the constitution, the
clause stood, "no state, without the consent," &c. "shall lay
imposts or duties on imports." The clause was then
amended by adding, "or exports," not however without
opposition, six states voting in the affirmative, and five in
the negative; and again by adding, "nor with such consent,
but for the use of the treasury of the United States," by a
vote of nine states against two. In the revised draft, the
clause was reported as thus amended. The clause was then
altered to its present shape by a vote of ten states against
one; and the clause, which respects the duty on tonnage,
was then added by a vote of six states against four, one
being divided. So, that it seems, that a struggle for state
powers was constantly maintained with zeal and pertinacity
throughout the whole discussion. If there is wisdom and
sound policy in restraining the United States from exercising
the power of taxation unequally in the states, there is,
at least, equal wisdom and policy in restraining the states
themselves from the exercise of the same power injuriously
to the interests of each other. A petty warfare of
regulation is thus prevented, which would rouse resentments,
and create dissensions, to the ruin of the harmony
and amity of the states. The power to enforce their respective
laws is still retained, subject to the revision and
control of congress; so, that sufficient provision is made
for the convenient arrangement of their domestic and internal
trade, whenever it is not injurious to the general
interests.

§ 1014. Inspection laws are not, strictly speaking, regulations
of commerce, though they may have a remote and
considerable influence on commerce. The object of inspection
laws is to improve the quality of articles produced by
the labour of a country; to fit them for exportation, or for
domestic use. These laws act upon the subject, before it
becomes an article of commerce, foreign or domestic, and
prepare it for the purpose. They form a portion of that
immense mass of legislation, which embrace every thing in
the territory of a state not surrendered to the general government.
Inspection laws, quarantine laws, and health
laws, as well as laws for regulating the internal commerce
of a state, and others, which respect roads, fences, &c. are
component parts of state legislation, resulting from the residuary
powers of state sovereignty. No direct power over
these is given to congress, and consequently they remain
subject to state legislation, though they may be controlled
by congress, when they interfere with their acknowledged
powers. Under the confederation, there was a provision,
that "no state shall lay any imposts or duties, which may
interfere with any stipulations of treaties entered into by
the United States," &c. &c. This prohibition was notoriously
(as has been already stated) disregarded by the
states; and in the exercise by the states of their general
authority to lay imposts and duties, it is equally notorious,
that the most mischievous restraints, preferences, and inequalities
existed; so, that very serious irritations and
feuds were constantly generated, which threatened the
peace of the Union, and indeed must have inevitably led
to a dissolution of it. The power to lay duties and imposts
on imports and exports, and to lay a tonnage duty, are
doubtless properly considered a part of the taxing power;
but they may also be applied, as a regulation of commerce.

§ 1015. Until a recent period, no difficulty occurred in
regard to the prohibitions of this clause. Congress, with a
just liberality, gave full effect to the inspection laws of the
states, and required them to be observed by the revenue
officers of the United States. In the year 1821, the state of
Maryland passed an act requiring, that all importers of
foreign articles or commodities, &c. by bale or package, or
of wine, rum, &c. &c., and other persons selling the same
by wholesale, bale, or package, hogshead, barrel, or tierce,
should, before they were authorized to sell, take out a license,
for which they were to pay fifty dollars, under certain
penalties. Upon this act a question arose, whether it
was, or not a violation of the constitution of the United
States, and especially of the prohibitory clause now under
consideration. Upon solemn argument, the Supreme
Court decided, that it was.

. . . . .

§ 1029. As the power of taxation exists in the states concurrently
with the United States, subject only to the restrictions
imposed by the constitution, several questions
have from time to time arisen in regard to the nature and
extent of the state power of taxation.

§ 1030. In the year 1818, the state of Maryland passed
an act, laying a tax on all banks, and branches thereof, not
chartered by the legislature of that state; and a question
was made, whether the state had a right under the act, to
lay a tax on the Branch Bank of the United States in that
state. This gave rise to a most animated discussion in the
Supreme Court of the United States; where it was finally
decided, that the tax was, as to the Bank of the United
States, unconstitutional.

. . . . .

§ 1049. It is observable, that these decisions turn upon
the point, that no state can have authority to tax an instrument
of the United States, or thereby to diminish the
means of the United States, used in the exercise of powers
confided to it. But there is no prohibition upon any state
to tax any bank or other corporation created by its own
authority, unless it has restrained itself, by the charter of
incorporation, from the power of taxation. This subject,
however will more properly fall under notice in some future
discussions. It may be added, that congress may, without
doubt, tax state banks; for it is clearly within the taxing
power confided to the general government. When congress
tax the chartered institutions of the states, they tax
their own constituents; and such taxes must be uniform.
But when a state taxes an institution created by congress,
it taxes an instrument of a superior and independent sovereignty,
not represented in the state legislature.